MSPB Clarifies Lack of Candor Charges
A Veterans Affairs police officer was charged with lack of candor, among other charges and specifications, and although the Board sustained the employee’s removal, it reversed the charge of Lack of Candor, clarifying the law in the process.
The third charge in the employee’s removal action was Lack of Candor, wherein the agency alleged that the employee displayed a lack of candor during an investigative interview. The Board noted that lack of candor and “falsification,” two common charges, are distinct from one another. As the Board explained, “[w]hereas falsification involves an affirmative misrepresentation and requires intent to deceive, lack of candor, by contrast, is a broader and more flexible concept whose contours and elements depend on the particular context and conduct involved.” The Board observed that lack of candor “need not involve an affirmative misrepresentation, but may involve a failure to disclose something that, in the circumstances, should have been disclosed to make the statement accurate and complete.” However, the Board noted, to constitute lack of candor, the misrepresentation or omission must be made knowingly.
But because the Agency’s charge of Lack of Candor contained charging language that described an affirmative misrepresentation (or an intent to deceive), the Board held that the Agency therefore had an obligation to prove that the employee made the statement in question, and that he did so with an intent to deceive. Even though the agency described the charge as lack of candor, the narrative description of the charge described a falsification offense. Citing Prouty v. General Services Administration, 122 M.S.P.R. 117 (2014), the Board noted that it is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency, and that it cannot substitute what it considers to be a more adequate or proper basis.
Because the affirmative judge did not base her credibility determinations on observations of witness demeanor. The Board weighed the evidence of the Lack of Candor charge anew, and found in favor of the employee. The Board found that the agency had failed to elicit sworn testimony from either witness to the allegedly false statement that the employee made the statement as charged, and that when the employee was interviewed, the interviewer gave the employee the wrong date of the incident. This misstep made the employee’s lack of candor less likely, as the mistakenly given date mooted any “apparent reason to misrepresent that his badge instead was removed on February 25, 2015.” The Board found that it was unlikely the employee would have misrepresented the date of his badge removal, given that the agency could have readily verified that he was performing police officer duties on that date.
However, although the Board did not sustain the Lack of Candor charge, it did sustain the charges relating to the falsification of entries in the VA Police Daily Operations Journal, and furthermore sustained the charge of Sleeping on Duty. The Board found that the penalty of removal was a reasonable penalty for those offenses, and sustained the employee’s removal.
Read the full case: O’Lague v. Department of Veterans Affairs
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.